An employer who improperly categorizes a member of staff as an independent contractor faces severe penalties from the taxing authorities, and might be liable to the employee for things like overtime pay, vacation pay, insurance payments and other benefits. Doing so is illegal, and many independent contractors could have claims against their employers for the improper characterization.
There are many factors to think about when determining if a worker is really an employee underneath the law and not an independent contract (regardless of what the employer calls them). Over the years a listing of factors has been manufactured by the courts and the taxing authorities in determining whether or not an individual can be an "employee" or an "independent contract." These factors are codified in the relevant statutes of many states. Like, The California Labor Code §2750.5 provides in part:
Proof of independent contractor status includes satisfactory proof these factors:
(a) That the average person has the proper to regulate and discretion regarding the types of performance of the contract for services because the result of the task and not the means by which it is accomplished is the primary factor bargained for.
(b) That the in-patient is customarily engaged in an independently established business.
(c) That the individual's independent contractor status is bona fide and not just a subterfuge to prevent employee status.
A bona fide independent contractor status is further evidenced by the presence of cumulative factors such as for instance substantial investment besides personal services in the business, holding out to stay business for oneself, bargaining for an agreement to perform a particular project for compensation by project rather than by time, control over the time and place the work is conducted, supplying the equipment or instrumentalities found in the task apart from tools and instrumentalities normally and customarily provided by employees, hiring employees, performing work that is not ordinarily in the span of the principal's work, performing work that will require a specific skill, holding a license pursuant to the Business and Professions Code, the intent by the parties that the task relationship is of an unbiased contractor status, or that the connection isn't severable or terminable at will by the principal but gives rise to an activity for breach of contract.
The main element questions to ask are:
Does the employer have the best to manage the way the work is completed?
Does the provide the various tools and equipment for the task? (as opposed to the worker providing his / her own tools and equipment )
Is the worker prohibited from competing from the employer and/or working for other employers at once?
May be the worker paid by the hour or with a salary? (as in opposition to being paid to complete a distinct project)
If the worker can answer some or every one of the foregoing questions affirmatively, then that worker may very well be a member of staff entitled to any or all the rights of an employee. If you believe that you've had your employment status improperly categorized as an "independent contractor" by your employer you must contact an attorney to go over your options.